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6th RED CROSS INTERNATIONAL HUMANITARIAN LAW MOOT

International Criminal Court

MEMORIAL FOR THE PROSECUTOR

Law School, Wuhan University

Chen Jianjun & Han Hui

(Word Count: 2000)

Team Number:BEIJINGIHL1211

MEMORIAL FOR THE PROSECUTOR

I. COLONEL CALLEY JONES BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME OF VIOLENCE TO LIFE AND PERSON, IN PARTICULAR CRUEL TREATMENT AND TORTURE. 1.1 The Katoland Armed Forces (KAF) and Katoland External Security Agency (KESA) have committed cruel treatment in Argus and Corti. 1.1.1 KAF and KESA inflicted severe physical and mental sufferings to the detainees. According to UN Human Rights Committee, Beatings during questioning and the detention of a person in inhumane conditions are listed as examples of severe sufferings. 1 Later in Tadic case and Blaskic case, severe beatings 2 and being confined in cramped or overcrowded facilities and deprived of sufficient food and water3 were respectively characterized as cruel treament. Treatment in detention facilities operated by KESA, were comparable with those above. Moreover, three women detained were subject to inappropriate touch, humiliating comments and embarrassing situations, without consideration due to their sex. This constitutes severe mental sufferings. 1.1.2 The people detained in Argus and Corti were hors de combat. The victims of severe physical and mental sufferings were in hand of KAF and KESA by detention, and lost ability to take part in the hostilities. These people in hand of an adverse party were hors de combat.4 1.1.3 The conduct took place in the context of and was associated with NIAC. The non-international armed conflict (NIAC) between DAF and KAF commenced in 1st September 2010. With shootouts increasing to large-scale clashes and resulting in heavy casualties, the intensity of the conflict reached the protracted requirement in Tadic.5 Besides, both parties possessed the requisite organization,6 for KAF is the
1

Aydin v. Turkey, Report of Judgements and decisions, ECtHR, 1997-VI, [84]; Greek case, Yearbook of the convention on Human Rights, ECiHR, p.461. 2 Asia-Pacific Moot Court National Rounds 2012, Moot Problem (Facts), [32]. 3 Prosecutor v. Blaskic (Judgement) (2000 Trial Chamber), IT-95-14-T, [681]. 4 AP I, Article 41. 5 Prosecutor v. Tadic (Decision) (1995 Appeals Chamber), IT-94-1-AR72, [70]. 6 Prosecutor v. Tadic (Judgement) (1997 Trial Chamber), IT-94-1-T, [562].

governmental forces while DNA is able to arm itself, and issue political statements. Thus the conduct took place in the context of NIAC. In Kunarac case, this association with NIAC exists when acts are closely related to,7 or in furtherance of the armed conflict. The arrest of the detainees was in the purpose to facilitate the reinforcement of the conflict, where people detained were believed either to have association with or to be supporters of DNA militias.8 1.1.4 The 3rd and 5th elements of this crime are also fulfilled. KAF and KESA knew that detainees were under the protection of the Conventions. They were also aware of the existence of an armed conflict, since attacks in Corti and nearby villages have been immediately intensified and lasted for more than 10 days.9 1.2 KAF and KESA have committed torture in Argus and Corti. Compared with cruel treatment, the establishment of torture requires the purpose of the perpetrator to inflict such pain or suffering.10 In this case, a victim was subject to severe beatings during his interrogation and torture was prevalent in those places operated by KESA where victims were interrogated. The purpose to obtain information or a confession could easily be deduced. 2. Jones bears superior responsibility for the war crime of violence to life and person, in particular cruel treatment and torture. 2.1 A superior-subordinate relationship existed. Superior-subordinate relationship exists when a person is in formal status or in effective authority and control as a military commander.11 Appointed the Executive Vice-Chairman of NCC, Jones was a military commander in charge of KAF and KESA. Jones strengthened his effective authority and control over KAF and KESA through the liaisons officers. Later their assistance in the search of West Drakonia and the take-over of Corti further confirmed
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Prosecutor v. Kunarac (Judgement) (2002 Appeals Chamber) IT-96-23&IT-96-23/1-A [58](Kunarac). Facts, [30]. 9 Ibid, [28]. 10 ICCSt, Article 8(2)(c)(i)-4, Element 2. 11 Prosecutor v. Delali (Judgment) (1998 Trial Chamber) IT-96-21-T, [370].

Jones power of control. This demonstrates the existence of superior -subordinate relationship. 2.2 The superior knew or had reason to know that the subordinate was about to commit such acts. Jones did know the cruel treatment and torture prevalent among the detainees, since in Jones official statement he excused the civilian casualties to their connection with DNA, and the NCC spokesperson tacitly consented to the cruel treatment, given the multiple threats to national security.12 2.3 The superior failed to take the necessary and reasonable measures to prevent such acts or to punish the principal perpetrators. Based on his knowledge of such commission, nothing was done to fulfill his commitment to ensure that persons detained would receive a fair treatment or to prevent the commission of crimes. The report published by Human Right Watch gave rise to an obligation to submit the matter to the competent authorities for investigation and prosecution, which Jones also failed to do. He also failed to carry out his obligation to punish the perpetrator after having learned that the offence was committed.13 II. JONES COMMITTED THE WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST MEDICAL TRANSPORT AND PERSONNEL USING THE DISTINCTIVE EMBLEMS OF THE GENEVA CONVENTIONS IN CONFORMITY WITH INTERNATIONAL LAW 1. KAF committed the crime of attacking against medical transport. 1.1 KAF attacked medical transports. Medical transports must not be attacked or their passage arbitrarily obstructed14. Even though there was suspect that medical transports were for military use, they shall be presumed not to be so used.15 Under the central command, KAF members immobilized and confiscated emergency vehicles, hindering the access to medical attention of the persons in need.16 It was reported 5 persons died in the vehicles and some died while arrested and detained at
12 13 14 15 16

Facts, [31]. ICTYSt, Article 7(3). Military manuals of Germany, South Africa and Switzerland. AP I, Article 52(3). Facts, [35].

the prison facility. According to the consequence-based approach, this arbitrary inspection constitutes attack. 1.2 This attack was intended under the instruction. The new instruction of the central command ordered searching all medical vehicles thoroughly and specified identity checks of all persons in them 17 . Under this instruction, KAF members especially stopped and searched the medical transports using distinctive emblems, intending them as the object of the attack. 1.3 The conduct took place in the context of and was associated with NIAC. Kunarac Appeals Chamber for ICTY emphasized that the nexus of the commitment with NIAC required the act to serve the ultimate goal of a military campaign; andcommitted as part of or in the context of the perpetrator's official duties."18 KAF searched medical transports under instruction as their official duty. And the prevention of transporting armed men and ammunition, will obviously help Katoland get a better control over the Drak, which in result serves the ultimate goal of the conflict. 1.4 The 4th element of this crime is also fulfilled. KAF controlled Corti by heavy fire. Then KAF closed the town and implemented the later instruction to search ammunition and prevent military action of DNA. It proves that KAF was aware of the connection between its action with NIAC, as well as its knowledge of the sporadic violence such as the firing from the ambulance, associating with a NIAC. 2. Jones should bear individual crime responsibility of inducing the commission of such a crime. Inducing means to affect, cause, influence an act or course of conduct, lead by persuasion or reasoning.19 As stated in I.2.1, Jones was in charge of KAF with the full authority over West Drakonia by military means if necessary.
20

He was in a

position of authorityto convince another to commit an offence,21 and his intent to induce this crime was manifested since he welcomed the assistance of security forces
17 18

Ibid, [34]. Kunarac, [59]. 19 Blacks Law Dictionary, 9th, edn., 2009. 20 Facts, [20]. 21 Prosecutor v. Krstic (Judgement) (2001 Trial Chamber) IT-98-33-T [601]; Prosecutor v. Akayesu (Judgement) (1998 Trial Chamber) ICTR-96-4-T, [483] (Akayesu).

under the Ministry of Internal Affairs.22 III. War crime of excessive incidental death, injury, or damage 1. KESA committed the war crime of excessive incidental death, injury, or damage. 1.1 NCC launched an attack. Attacks requires acts of violence23. As ICRC notes, cyber operations that result in physical damage to persons, or damage to objects that goes beyond the computer program or data attacked could be qualified as acts of violence in the sense of IHL.24 Cyber-attacks on the Bargo power station resulted in hundreds of deaths and extensive impact of supply,25 so the attack did exist. The time of the cyber attack after the offensive on Mesto provides the evidence that NCC enabled it, and with KESAs assistance since it was charged to seek means of retaliation of the earlier cyber attack and later built close ties with organized crime syndicates specializing on electronic fraud.26 1.2 The cyber attack caused incidental loss of life or damage to civilian objects, which was clearly excessive in relation to the concrete and direct overall military advantage anticipated. Military advantage must be substantial and relatively close27 in weakening the enemy armed forces after considering the military operations strategically as a whole.28 It can be anticipated that the cyber attack would influence the military base stationed 8,000 troops, the airfield used partly for military purpose and the odds ratio in Mesto.29 Incidental is the collateral outcome to civilians or civilian objects in attacking military objectives. The cyber attack severely affected the electricity and water supply,
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Facts, [25]. AP I, Article 49(1). 24 ICRC, 31st International Conference of the Red Cross and Red Crescent, IHL and the Challenges of Contemporary Armed Conflicts, Report 31IC/11/5.1.2, 2011. 25 Facts, [42]. 26 Ibid, [20], [43]. 27 ICRC Commentary, [2209]. 28 International Legal Materials Reports, 31 I.L.M.612(1992), [623] 29 Facts, [16], [38], [39], [41].

objects indispensable to the survival30 of more than 150 thousand inhabitants.31 And the disruption lasted for over 6 months with nearly 500 civilian deaths. 32 Such expansive and severe results are clearly avoidable and beyond military necessity, making the attack disproportionate. 1.3 NCC knew that the attack would cause excessive damages. Given the location of power station, the harsh climate and the fact that the station provides power for more than 150 000 households, cause excessive damages. 1.4 The 4th and 5th elements are also satisfied here. An armed conflict is international if it takes place between two or more States.34 With the attack launched by KESA to power station to FRB, there came the International Armed Conflict (IAC) between Katoland and FRB. KESA was conscious of the importance of Bargo Power Station to East and West Drakonia and military damage caused by its shut-down, so KESA knew the circumstances. 2. Jones bears individual crime responsibility of contributing to this crime. A person contributing either physical or in the form of moral support intentionally to the commission of a crime by a group of persons acting with a common purpose, shall be criminally responsible for punishment.35 Contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or criminal purpose of the groupor be made in the knowledge of the intention of the group to commit the crime.36 NCC and KESA were under the charge of Jones.37 Joness intent to launch the cyber-attack is manifested when he proposed to put Western Drakonia under full military authority with his personal supervision and unequivocally welcomed the
30 31 32 33 34 35 36 37

33

it can be inferred that NCC knew the attack would

AP I, Article 54. Facts, [39], [42]. Ibid, [40], [42]. Ibid, [40], [39]. Prosecutor v. Tadic (Judgement) (1999 Appeals Chamber) IT-94-1-A, [678]. Prosecutor v. Furundzija (Judgement) (1998 Trial Chamber) IT-95-17/1-T, [229], [231]. ICCSt, Article 25(3)(d). Facts, [19].

assistance of KESA.38 So Jones should bear the contributing responsibility, even where the principal perpetrator of the crime had not been identified.39


38 39

Ibid, [25]. Akayesu, [530]; Prosecutor v. Musema (Judgement) (2000 Trial Chamber) ICTR-96-13-T, [174].

PRAYER The Prosecution submits that it has been proved beyond a reasonable doubt that Calley Jones bears criminal responsibility for three crimes under the Rome Statute. The Prosecution respectfully requests this Honourable Court to adjudge and declare that Calley Jones is guilty on all charges.

RESPECTFULLY SUBMITTED, Counsel for the Prosecution